The Justice Game Read online

  These were strange Bunuel-type times, before the IRA’s resurgence, when secret policing of young radicals was justified less by their anti-Vietnam protests than by the small bombs which sporadically exploded at ‘Miss World’ contests and outside Spanish tourist offices, planted by Cambridge graduates calling themselves ‘The Angry Brigade’. Every time I walked along Palace Gardens Terrace and descended into Richard’s basement at No. 11A, I was captured on film by the Special Branch, who were (I discovered many years later) occupying an entire floor of the Edwardian house opposite. What they made of a clean-cut Australian law student in an unfashionable brown suit and tie I shall find out only if I live long enough for a Freedom of Information Act which allows me to see my file. (They certainly must have recorded a decline in dress sense, as my hair lengthened and I changed into compost-coloured corduroys and finally acquired the mandatory velvet suit.) Had I known ‘they’ were watching, I would probably have caught the next train back to Oxford. But at the time, I did not think twice: I had not been in this town long enough to realise how limited was its tolerance. Abbie Hoffman was a celebrated defendant who might be in need of a lawyer. Excited at the prospect of standing in momentarily for William Kunstler, the ‘movement’ lawyer who had defended the Chicago conspirators, I agreed to go and meet him.

  Richard had acquired a chauffeur – a crippled New Zealander named Stan, who hinted darkly on the way to Heathrow at his qualifications for driving get-away cars. He parked directly outside the arrival hall, idling his souped-up engine while Richard and I waited for the flight from Paris to empty. To our surprise, it was not long before Abbie Hoffman sailed through – there is no other metaphor to describe the passage of a person so resplendently rigged with billowing black hair. ‘It’s Sunday night. They got dozy’ he laughed, embracing his English acolyte. ‘I brought my attorney,’ said Richard with some pride: the best-selling hip adventurer Hunter S Thompson never travelled without one, so having a lawyer in tow had become a desirable fashion accessory for the well-groomed revolutionary of the period. Hoffman eyed me for a moment, with ill-concealed disdain for my youth and my haircut; his broken Brooklyn nose actually crinkled at my olfactory faux pas – Old Spice aftershave. ‘I need to go down to Pan Am to check my ticket through to Northern Ireland,’ he said breezily. ‘I’d advise you to do that tomorrow,’ I whispered, mindful of the stop-list, but Hoffman surged downstairs to the Pan Am counter, where we were promptly intercepted by three immigration officials.

  ‘We’re sorry, Mr Hoffman, we need your passport back for one moment,’ said the largest, with an embarrassed smile. ‘We just need to put another stamp in it before you go. Please.’ Richard, ever polite, said ‘Sure’ and Abbie, like most Americans a sucker for English good manners, reached for the vital document. That was when, to everyone’s surprise and especially my own, I intervened. ‘Actually, Mr Hoffman will not surrender his passport. He’s been lawfully admitted to the United Kingdom, and you have no power to detain him or require him to give you his passport again. As his legal advisor, I assure you he will abide by his conditions of entry. Gentlemen, good night.’ Then, undermining the majesty of this message, I muttered, ‘I think we’d better run for it’ – and we did, leaving the officers standing, legally powerless to pursue us. Stan’s get-away car was still waiting outside, and just in case my advice was wrong, he gunned it at break-neck speed towards the lights of London.

  Abbie Hoffman’s motor-mouth went just as fast, and I sank into silent reflection. Hoffman seemed arrogant and self-obsessed, with nothing much to say in England and even less in Northern Ireland. His presence was, in fact, not particularly conducive to the public good and certainly not conducive to mine, if I wanted to stay after my student visa expired. What had made me intervene, to abort the process whereby officialdom would simply have cancelled his entry visa and put him on the next flight to New York? Perhaps I was a lawyer by nature, as well as by training? I had realised that these pleasant officials were lying, in the good cause of retrieving their mistake (the fact that they said ‘please’, and said it nervously, was the giveaway). They were abusing their power, or at least asserting a power they did not have, once they had given Hoffman leave to enter. The rights or wrongs of Abbie Hoffman being banned from Britain did not enter into the calculation: he was entitled to know his rights, even a right which had accrued through an oversight. It struck me, miserably, on that high-speed, white-knuckled journey, that the sooner I found a rationale for defending people as meretricious as Abbie Hoffman, the better.

  The rationale was found for me a few days later. I had retreated to the safety of the postgraduate common room at University College, where homesick American Rhodes Scholars mooched behind copies of the Herald Tribune. (Bill Clinton from Arkansas was one of them at ‘Univ’, where it had not been thought he would amount to much. The ambitious American we middle-commoners voted ‘most likely to succeed’ was Paul Gambaccini.) Taking my place behind The Times, I read with astonishment how my first piece of legal advice in Britain had caused a rumpus in Parliament:

  Mr Fell (Yarmouth, Conservative) asked what were the circumstances under which Mr Abbie Hoffman was allowed into Great Britain.

  Mr Sharples (Minister of State, Home Office, Conservative): Mr Hoffman was inadvertently admitted as a visitor on March 21st.

  Mr Fell: Is it not rather serious, as hippies are perfectly well known to the Home Office and have stated that they support the National Liberation Front in Vietnam, the Black Panther Movement, and the Irish Republican Army. What is the Minister to do to prevent inadvertently letting in people of this type?

  Mr Sharples: The immigration officers do an extremely good job. A mistake was made in this case and steps have been taken to see that it will not happen again.

  Mr Merlyn Rees (Leeds South, Labour): Who is Mr Abbie Hoffman? (Laughter)

  Mr Sharples: There is a long description of Mr Hoffman. Perhaps I had better write to Mr Rees. (Renewed laughter)

  Reading these inane exchanges gave me the first inkling of the fallacy that Parliament is the true guardian of civil liberties. Abbie Hoffman’s three days in England had been uneventful, yet here were MPs and ministers contriving to keep others like him out, for no reason other than their lifestyle and political opinions. They were supported by the Shadow Home Secretary. (A few years later Merlyn Rees welshed on Labour’s commitment to introduce a Freedom of Information Act, explaining to a disappointed MP that ‘only two or three of your constituents would be interested’.) So I had the retrospective satisfaction of realising that I had given legal advice that was correct and which had contributed to freedom of speech. And, of course, that had caused ‘steps to be taken’ to ensure such a contribution could not be made again. I tossed the newspaper onto the table, dimly aware that I had discovered in it the first evidence for what over the next quarter-century would harden into my only unshakeable belief; namely that it is to the law and the courts, rather than to politicians and Parliament, that we have no alternative but to turn if civil liberties are to be protected.

  What struck me more immediately was the irony that I had so recently left a country which did regularly refuse entry to people and books and films that its government did not like, in order to enjoy the liberty I had learned about from reading the New Statesman and Penguin Specials. Growing up in Sydney in the fifties and sixties had been the cultural equivalent of living in a suburb of the Isle of Wight, without the pop festivals. We had studied only English history (‘Australian history’ being a short course in British penology, circa 1788); we listened to recycled BBC radio programmes and had swooned, quite literally, over the young Queen. (The first atrocity I observed, at the age of nine, was the sight of hundreds of small children collapsing from heat exhaustion after waiting hours in the boiling sun at Sydney Showground for a limp wave from the passing monarch.) One result of this cultural obeisance was that from afar England sounded increasingly attractive as it progressed from the Lady Chatterley trial through the Beatles t
o the liberal reforms of Harold Wilson: Australia did not enter the sixties until it was dragged into them by Gough Whitlam’s Labour government in 1972. That was two years after I arrived in what Australians still called, and with fondness, ‘the mother country’.

  In the post-war diaspora of displaced Australians, I arrived with the second wave – less witty, more political as a result of Vietnam. The first surge had left while I was at school (a boy’s comprehensive) in Sydney. I would sneak off to watch Barry Humphries trying out Edna Everage, whose cringing self-abasement was originally the joke. I arrived at Sydney University in 1964: the revue was still using scripts left behind by Clive James, and a tear-stained tutor arrived very late for my first philosophy seminar, explaining through sniffles, ‘I’ve just come from the airport. Germaine is gone forever.’ The office I soon occupied as the President of the Student Council had traces – kicked over, I suspect – of these and other expatriates who honed their wit on a country run in small-minded and ridiculous ways. They left before being required to die for it, in the Vietnam War, to stop the ‘yellow peril’ which was waiting to descend, as if by gravity, on its whites-only civilisation.

  Conscription was conducted as fairly as a lottery: only those twenty-year-olds whose birth-dates were drawn out of a barrel were called up. Old schoolfriends who had not made it to university and draft exemption started to go missing, presumed dead, in unpronounceable provinces of South Vietnam, fighting people of a colour they would never have seen at school. This gave student politics a kind of steel – if we were old enough to fight an unjust war, we were no longer prepared to be treated like children. ‘Student power’ required our participation at every level of university government: I became the first ‘student proctor’, sitting in judgment on friends accused of pelting reactionary politicians with rotten tomatoes, secretly wishing I had the gumption to commit the same crime. But on every occasion that tempted towards heroism or hedonism, I had this albatross around my neck, what my mother called ‘your legal career to think of’. It led to a reserve, a detached and slightly puritanical outlook, a sense that I would always be last to join the orgy.

  I had first thought of a legal career at school, as the result of a bizarre act of Antipodean censorship. The acquittal of Lady Chatterley’s Lover at the Old Bailey, by a jury which had been asked ‘Would you allow your wife or even your servants to read this book?’, had horrified the repressive Australian establishment. The Prime Minister, Robert Menzies, announced in Cabinet that the book must remain on the banned list because he would never allow his wife to read it; zealous customs officials, in an excess of wife protection (Australians, at least, did not worry about their servants), banned C H Rolph’s edited account of the trial as well, which had been published as a Penguin Special, on the grounds that it too might ‘tend to deprave and corrupt’. This idiocy provoked one courageous Sydney bookseller to arrange for friends in England to transcribe by hand every word of Rolph’s book onto thirty-two tightly spaced air letters, which entered the country as personal mail and so eluded the censor. The Trial of Lady Chatterley was then reconstituted and printed in a Samizdat edition, which fell into my schoolboy hands. Endowed with the thrill of forbidden fruit, it was this book which must first have aroused in me the corrupting desire to practise at the Old Bailey like D.H. Lawrence’s defenders, Gerald Gardiner and Jeremy Hutchinson.

  At Sydney University, the ideals of the time demanded we should learn a different kind of law to that which regulated conveyancing and commerce. We wanted to understand how it impacted upon the poor, so we could use it to improve their lot. There were bloody fights with the Faculty to force it to offer a course in ‘poverty law’, a battle won only after we promised to change the title to ‘Law and Social Justice’. In these years, much affected by Martin Luther King’s example, we organised ‘freedom rides’ to outback towns to break down the colour bans which were everywhere, from pubs to swimming-pools, a petty apartheid as entrenched as it was in South Africa. I became a Board member of an organisation for the advancement of Aborigines and Torres Strait Islanders, and began to act for blacks – usually on minor criminal charges. There was a problem in bringing them back to the prestigious commercial law firm where I worked as an articled clerk and then as a solicitor: it never dirtied its hands with crime. I took this up with the senior partner: why couldn’t we defend clients on criminal charges? He sucked his pipe for a moment and looked on me rather like a fond father called upon to tell his son the facts of life. ‘Why, lad, it’s like this. We just couldn’t have criminals sitting alongside clients like Mr Packer and Mr Murdoch in our waiting room.’

  Australians of my generation are haunted by the treatment meted out to Aborigines in the past, the more so as these persecuted people were the first to break down the ‘Englishness’ in the national character: they taught us to dream, to be easy-going, and to find our way through the bush. Acting for them, however, was not a matter of sentiment: no other group suffered such injustice. The first case we took up was that of Nancy Young, a mother who had been jailed for the manslaughter of her baby who had died, so the police doctor said, from malnutrition. She lived in abject poverty on an unsanitary Aboriginal reserve behind a prosperous country town in Queensland: her all-white, all-male jury ignored expert evidence that the child had died from disease rather than neglect, and so did the local Court of Appeal. There were student protests, a television programme and my first articles for serious newspapers about this wrongful conviction. The Queensland authorities found a pretext to reconsider the case and quash the conviction on a technicality, without any apology or any misgivings: the next time it happened they hoped that nobody would notice. It was my first inkling about how often justice only gets done when someone does notice.

  In law, Australia was still a colony, its final court of appeal made up of English judges – the Law Lords – who sat in the Privy Council in London. This was despite the fact that the Australian High Court boasted the best judge in the common-law world, Sir Owen Dixon. His was a great legal mind with a curious pathology – he discouraged the Privy Council developing as a true Commonwealth Court because he was physically revolted by the prospect of sitting alongside a black judge. Dixon’s successor as Chief Justice was Garfield Barwick, who had been the pre-eminent advocate of his day, much admired by the Privy Council. I would dine with him occasionally, and he would tell of his exploits in that far-off battlefield in Downing Street before the Lords of English justice. The best story, or so he regarded it, was the one about the ‘thirteen little Malaysians’. All were communist subversives who had appealed to Her Majesty’s Privy Council against their death sentences, but only twelve had the sense to retain Barwick. He took a very short and very technical point about the validity of the execution warrant, which the barrister for the thirteenth man had not noticed and did not take. In due course the Lords of English justice delivered their verdict: Barwick’s argument succeeded and the lives of his twelve clients would be spared. The thirteenth, whose case was the same in every way, had his appeal rejected and was hanged. The moral of this story, I suppose, was that lawyers best serve the cause of human rights by attention to detail, rather than by waxing passionate about evils like capital punishment. As a student, I found it shocking rather than amusing.

  The lawyer who seemed most to epitomise progress was Gerald Gardiner, the defender of Lady Chatterley, who had only taken the job of Lord Chancellor in the British Labour government on condition that the death penalty be abolished. Under his guidance the government had put homosexuality and abortion outside the reach of criminal law, had abolished censorship of the theatre, passed a law against incitement to racial hated and had begun, by establishing a Law Commission and appointing Leslie Scarman to it, to reform the archaic common law. When I left Sydney, Bill Deane, the city’s leading silk, kindly gave me QB VII to read on the boat. This is Leon Uris’s fictionalised account of the libel action brought against him by one of the Auschwitz doctors he had exposed in Exodus. There
I found the most glowing literary tribute ever paid to a member of the Bar. The worried author, walking in the Temple late at night, sees the lights still burning in the room of his advocate, and is filled with awe that a man could so relentlessly dedicate himself to another’s cause. Gardiner was that counsel – his room was known as ‘the lighthouse’ long before Uris saw its beam and identified the obsessive commitment which is a barrister’s most admirable (and most overlooked) quality.

  Lord Gardiner had gone, along with the Labour government, by the time I reached Britain. It was not until 1985 that I was provided with an excuse to meet him, to invite his help in what was probably an unlawful conspiracy to publish a book called Spycatcher. Mrs Thatcher had got wind of an embittered ex-MI5 officer penning his memoirs in Tasmania, and her Cabinet Secretary, Sir Robert Armstrong, had sworn an affidavit to stop him in the Australian courts. He claimed that Gardiner, as Lord Chancellor in 1967, made a blanket prohibition on the release of any document making reference to the security services. By now, Lord Gardiner was in an advanced stage of Hodgkinson’s disease, but his mind and his memory were as precise as ever. The electric blue eyes, which had once terrified witnesses like torches shone on rabbits at night, switched on as they burned through the Cabinet Secretary’s claim. Gardiner told me he would be happy to testify that a blanket ban was not what he had meant at all. As I was leaving he said, ‘By the way, I seem to remember a convention that former Lord Chancellors should notify the incumbent if they are going to breach the Official Secrets Act: would you like me to drop a warning note to Quintin Hailsham?’ The eyes flickered for a second – a momentary loss of voltage, or a twinkle? It occurred to me then that one essential characteristic of a great advocate is the ability to control an instinctive sense of mischief.